BUSH v. STATE12/1/1995
r Co. v. Henderson, 342 So.2d 323, 327 (Ala. 1976). While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court. Id.; Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1255-56 (Ala. 1986); Village Toyota Co. v. Stewart, 433 So.2d 1150, 1156 (Ala. 1983). This Court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised. Id. A reversal is not appropriate absent abuse of this discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327; Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404 (1928); see Clark v. State, 443 So.2d 1287 (Ala.Crim.App. 1983)."
Knop v. McCain, 561 So.2d 229, 232 (Ala. 1989).
First, the appellant contends that venireperson W.B. should have been disqualified because he knew several facts regarding the charged offense and knew that the appellant had been previously tried and convicted of the capital murder of Dominguez.
" 'Prospective jurors who have heard of a defendant's previous conviction on the same charges need not be automatically excluded from the venire.' Whisenhant v. State, 482 So.2d 1225 (Ala. Crim. App. 1982), affirmed in part, remanded with directions on other grounds, 482 So.2d 1241 (Ala. 1983); affirmed on remand, 482 So.2d 1246 (Ala.Crim.App. 1983); Giles v. State, [Ms. 6 Div. 86, January 10, 1984], So.2d (Ala. Crim. App. 1984). A prospective juror with knowledge of a previous conviction need not be dismissed for cause, if the trial court determines that the juror does not have a fixed opinion of appellant's guilt, but rather can lay aside any preconceived notions or opinions and render a verdict based solely upon the evidence presented in court. Murphy v. Florida, 421 U.S. 794 . . . [95 S.Ct. 2031, 44 L.Ed.2d 589] (1975); Whisenhant v. State, supra; Giles v. State, supra. This determination is a matter left to the sound discretion of the trial court. See, Robinson v. State, 430 So.2d 883 (Ala.Crim.App. 1983), and cases therein cited."
Beck v. State, 485 So.2d 1203, 1205 (Ala. Cr. App. 1984), aff'd, 485 So.2d 1207 (Ala. 1985). (Emphasis original.)
The record, in pertinent part, shows the following:
"THE COURT: Did anything that you heard, or anything that you know about this case, does any of that cause you to have an opinion as to whether or not this man here, Mr. Bush, is guilty or whether he's innocent of this offense?
"W.B.: Not really.
"THE COURT: If you were selected on the jury, how would you go about determining whether or not he's guilty?
"W.B.: By the evidence presented in court.
". . . .
"MR. GLASSROTH [defense counsel]: You remember an awful lot back 10 years. Knowing that one jury of 12 has sat there and gone through the painstaking process, and knowing they returned a verdict of guilty, would have some influence on you, wouldn't it?
"W.B.: I don't think so.
"MR. GLASSROTH: You think you could look at this completely detached from what may have happened before?
"W.B.: As much as humanly possibly.
". . . .
"MR. GLASSROTH: . . . . Knowing about the prior proceeding and knowing all the stuff that you obviously have held onto for the period of time you have, can you say for sure that you can look at this and not put all of that out of your mind; or do you feel that it might affect you?
"W.B.: I can say I am capable of
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